Clift (et al.) v Kane (et al) (1870)
Facts On Saturday April 17th, the plaintiffs' vessel, the Brothers, was stuck in the ice in Green Bay a few miles from land. The Defendants' vessel (Kane's) was also stuck in the same ice and was about 8 miles SSE of the Plaintiffs' vessel. The Plaintiffs' crew killed approximately 3,000 seals, some of which were sculped and piled, some were cut open and others were left round. The plaintiffs took about 300 seals aboard per day and a flag was set up to mark the place where the rest were to be found. On Wednesday, the ice and the vessels shfited their positions and removed the seals further away from the Plaintiffs' vessel and closer to the Defendants' vessel. On Friday there was an opening in the ice and the ship was able to return home. The Plaintiffs' did not go back for the seals, thinking that the remainder of the seals would have been taken by the Defendants' vessel. Shortly thereafter, both vessels returned to St. John's. Issue # Do the crew of the Brothers have posession rights over the seals that were not brought on boad? Decision Judgement for the plaintiffs' by jury. Reasons Hoyles C.J. (majority) argued that when a person kills a seal and seizes it, they take manual occupation of it and it becomes absolute property. He goes on to argue that ferae naturae (wild animals) simply become normal chattels upon their killing and seizure and, as with all chattels, they become absolute possesion. Hoyles argues that if a man's purse or other property is lost or stolen, it does not cease to be his property, he simply loses his ability to take advantage of and utilize this property. However, should this property be found or obtained by another person, it must rightfully be returned to its owner so as not to deprive the owner of his right to posession. In the case at bar, Hoyles indicates that the weather and ice deprived the crew of the Brothers from their ability to benefit from the possession of the seals but it did not cease to be their property and therefore, they still had claim to the right of possession. Robinson (dissenting): argued that this ruling and approach was novel for the court and went against all previous precedent, diverging away from stare decisis. Robinson discusses previous cases of similar situations with whalers in which it was said that the whale does not become absolute property until the killing and bringing to shore is complete. Only once the killing and delivery is complete does the ferae naturae become absolute property. Robinson uses the analogy of beehives in which the bees are the seals and the hive is the vessel. In this sense, the seals are qualified property and do not become absolute until they are taken on board the vessel. Robinson argues that the biggest challenge is the delivery of the animals and not simply the killing, arguing that it is a common occurence for animals who have been hunted to be lost prior to their being able to be delivered safely. Robinson concludes by stating "The grave question here is, what is the law? Is it what the Supreme Court has for the last forty years uniformly and unanimously declared, or is it what the Supreme Court of to-day by a majority of its judges declare, in opposition to the former ruling?" Ratio Upon its killing, Ferae Naturae becomes absolute property.